Opinion
Cause No. IP 97-128-C-Y/S
December 9, 1999
ENTRY DENYING PLAINTIFFS' POST-JUDGMENT MOTIONS
On March 11, 1999, this court granted summary judgment in favor of the defendant, the United States of America, and entered final judgment in favor of the government and against the plaintiffs. On May 7, 1999, the plaintiffs filed their notice of appeal and have appealed the court's decision to the United States Court of Appeals for the Seventh Circuit. Pursuant to a bill of costs submitted by the government, this court issued an order awarding certain costs to the defendant, as a prevailing party, on September 3, 1999. This cause is now before the court upon the plaintiffs' request for relief from judgment pursuant to FED.R.CIV.P. 60(b)(6) filed September 23, 1999, and a motion to reconsider the court's order awarding costs filed September 30, 1999.
At the outset, it must be noted that a district court cannot grant a Rule 60(b) motion while an appeal is pending, but the court has jurisdiction to deny such a motion. See Chicago Downs Ass'n, Inc. v. Chase, 944 F.2d 366, 370-71 (7th Cir. 1991). After reviewing the submissions of the parties and this court's prior entry of March 11, 1999, the court now concludes that both of the plaintiffs' motions should be denied without much further ado.
The plaintiffs brought this action seeking a tax refund. The plaintiffs' Rule 60(b)(6) motion asks the court to "amend" its prior entry of judgment to determine whether certain advances at issue in this case were "otherwise deductible" — i.e., deductible under a different legal theory than the one argued in the plaintiffs' summary judgment briefs — in computing the plaintiffs' tax liability. Rule 60(b) authorizes relief from a court's judgment based on a variety of grounds, such as mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud. Rule 60(b)(6) adds a "catch-all" provision that allows relief for "any other reason justifying relief from the operation of the judgment." Rule 60(b)(6) may be used to order relief from judgment only in "extraordinary circumstances" or where the judgment will cause "extreme and undue hardship." See, e.g., DeWeerth v. Baldinger, 38 F.3d 1266, 1272 (2nd Cir. 1994); Cincinnati Ins. Co. v. Flanders Elec. Motor Service, Inc., 131 F.3d 625, 628 (7th Cir. 1997). The failure to raise all available legal theories does not justify relief under Rule 60(b)(6). See Provident Sav. Bank v. Popovich, 71 F.3d 696, 700 (7th Cir. 1995); see also United States v. 7108 West Grand Ave., Chicago, Ill., 15 F.3d 632, 634-35 (7th Cir. 1994). In this case, the plaintiffs were facing a dispositive summary judgment motion; it was incumbent upon them to raise their legal theories at the proper time. Accordingly, the plaintiffs' Rule 60(b)(6) motion is DENIED.
The plaintiffs' motion to reconsider the award of costs is premised upon the theory that if this court were to grant the plaintiffs' Rule 60(b)(6) motion, the government would then no longer be a "prevailing party" entitled to costs. See FED.R.CIV.P. 54(d). Therefore, this motion is DENIED as well.
SO ORDERED this _____ day of December, 1999.